People v. Garcia CA5 ( 2022 )

Filed 5/5/22 P. v. Garcia CA5
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078249
Plaintiff and Respondent,
(Super. Ct. No. BF170661A)
v.
JOSE EPIFANIO GARCIA, JR., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Robert Gezi, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
Appellant Jose Epifanio Garcia, Jr., appeals his convictions following a jury trial.
Garcia was found guilty of first degree murder (Pen. Code, § 187; count 1)1 of Rodolfo
Garcia;2 assault with a firearm on Yesenia, Joel, and Maria (§ 245, subd. (a)(2); counts 3,
5, 7, respectively); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 8); and
participating in a street gang (former § 186.22, subd. (a); count 9). The jury found true
enhancements for lying in wait (§ 190.2, subd. (a)(15)), being an active participant in a
criminal street gang (§ 190.2, subd. (a)(22)), committing the offense to benefit a criminal
street gang (former § 186.22, subd. (b)(1)), discharging a firearm in the commission of
the offense (§ 12022.53, subd. (d), and personally using a firearm in a gang offense
causing injury or death (§ 12022.53, subd. (e)(1)) as to count 1; benefiting a street gang
(former § 186.22, subd. (b)(1)), personally using a firearm (§ 12022.5, subd. (a)), and
inflicting great bodily injury (§ 12022.7, subd. (a)) with respect to Joel as to counts 3, 5,
7, and 8; and benefiting a gang (former § 186.22, subd. (b)(1)) as to count 8. Garcia was
found not guilty of attempted murder of Yesenia, Joel, and Maria (§§ 664, 187, subd. (a);
counts 2, 4, 6, respectively).
For the reasons set forth below, we affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND3
Early in the morning on December 2, 2017, police discovered Andy Medina had
been shot and killed. Medina was alleged to be an active member of Lamont 13, a
criminal street gang, who went by the nickname “Viper” and was close friends with
Garcia.
1 Undesignated statutory references are to the Penal Code.
2 For clarity, we refer to appellant by his last name and Rodolfo Garcia by his first name.
Pursuant to California Rules of Court, rule 8.90, we refer to victims by their first names. No
disrespect is intended.
3 We provide a general review of the facts and relevant evidence in this section.
Additional facts relating to any specific argument raised in this appeal will be included in the
discussion of that argument.
2.
Later in the day on December 2, 2017, Garcia approached Yesenia and Rodolfo at
a grocery store. Rodolfo was wearing red pants and a hat with the letter “A” on it.
Garcia initially stood in the entrance to the store, looking around, before asking Rodolfo
and Yesenia whether they had seen a little boy. The two responded they had not. As
Rodolfo and Yesenia exited the store, Garcia approached again and asked for a lighter
and a cigarette. Rodolfo responded that he did not have those items. He and Yesenia
then began to walk away. At this point, Garcia stated, “Oh, hold on” and took out a gun.
Another man also approached with a gun, and both began shooting at Rodolfo. Rodolfo
attempted to flee but was shot dead. These incidents were caught on video surveillance
and played to the jury.
The shooting was allegedly a retaliation for the killing of Medina. Rodolfo was
alleged to be a former member of Arvina 13, a criminal street gang based in Arvin.
Rodolfo had known gang tattoos on his knuckles, hands, chest, and stomach. However,
Rodolfo had allegedly left the gang and moved to Lamont in 2014. During the police
investigation, a cell phone found with Garcia contained messages from December 2,
2017, stating, “They shot and killed Viper,” confirming Garcia was in Lamont near the
time of the shooting, asking Garcia if “[he got] the name of … who got hit,” and
instructing Garcia to destroy the phone.
In addition to the shots that struck and killed Rodolfo, some of the shots fired
injured Joel and Maria as they were walking to a nearby restaurant. Maria suffered a cut
to her face while Joel was struck more directly causing a broken jaw and additional facial
injuries.
The police located six similar nine-millimeter shell casings in front of the nearby
restaurant. They also recovered two bullet fragments from the area. Additional bullet
fragments, from a different caliber weapon were later found in Rodolfo’s body.
When Garcia was eventually arrested, he was found with a semiautomatic firearm.
The shell casings located at the scene of the shooting were determined to have been fired
3.
from this gun. However, none of the bullet fragments located at the scene or within
Rodolfo’s body could be matched to the weapon.
To prove the gang elements of the charges, the prosecution sought to show that
Garcia and Medina were both friends and members of the same gang. A photograph
found in Garcia’s apartment showed Garcia with Medina. Garcia also allegedly told a
police officer that he and Medina grew up together and were like family. An officer
testified to an incident in 2015 where Garcia was contacted outside Medina’s home and
identified a photograph of Garcia with Medina where both were making an “L” sign with
their left hands.
Prosecutors also attempted to prove Garcia’s connection to a gang through several
additional avenues. They showed he made a call from prison where he expressed
knowledge of gang culture by discussing a gang member named “Shy Boy” that was in
protective custody. During that call Garcia stated his housing pod lacked a letter that
would reference “LFS,” a shorthand reference to Lamont Familia Sureño, which is an
alleged subset of Lamont 13. They showed he had been arrested and convicted in 2008
for carrying a concealed weapon, alleging he had stated at the time that his gang moniker
was “Joker” and that he had previously been jumped into a Lamont gang. An officer
testified Garcia had been seen in 2015 associating with a known Lamont 13 member
named Angel Urquidez. Another officer testified that he contacted Garcia during a traffic
stop in 2017, saw Garcia had tattoos related to Lamont 13, and found papers and
drawings in the trunk of the vehicle Garcia was driving containing gang art and
references, including “Lamont, sureño, lobster, Kern lobster, KC” and “93241,” all of
which referred to Lamont 13. Based on this evidence, the gang expert opined that Garcia
was an active member of Lamont 13 at the time of the shooting.
Medina’s gang connection was documented in a similar manner. An officer
testified to multiple contacts with Medina, confirmed his moniker was “Viper,” and
confirmed that several of the prior police contacts with Medina related to investigations
4.
of Lamont 13. Pictures from Medina’s social media accounts showed gang references,
including one for “LFS” or Lamont Familia Sureño. At the time of his death, Medina
was considered an active member of Lamont 13.
The majority of the remaining gang evidence came in the form of expert testimony
regarding the nature of gangs in Lamont, prior criminal gang activity, and the effects of
gang activities on the community. Testimony showed that Lamont 13 is a gang in
Lamont with two subsets known as Varrio Chico Lamont and Lamont Familia Sureño.
The gang engages in regular illegal activities including murder and illegal possession of
firearms. Members of Lamont 13 could belong to either the Varrio Chico Lamont or
Lamont Familia Sureño subsets but did not need to be part of either.
Lamont 13’s main rival gang is Arvina 13. A Lamont 13 member who saw a rival
Arvina 13 member in their territory would be expected to, based on the rules of the gang,
confront that person in some manner. Moreover, one would expect that a Lamont 13
member who saw another individual in public in their territory wearing a hat with an “A”
and having Arvina Poor Side4 tattoos would be working to benefit Lamont 13 if they
attacked that person in part because such public attacks create fear in the community and
allow the gang more freedom to operate.
Evidence also showed that individuals named Ricardo Ramirez, Luis Medina, and
Javier Torres were members of Lamont 13 and had previously been convicted of criminal
activities occurring on behalf of the gang, including a shooting that occurred in 2016.
Another group of individuals, Dennis Ruth, Daniel Catalan, Eddie Catalan, and Roberto
Rodriguez were identified as active members of Lamont 13 in 2014 who were convicted
of offenses such as attempted manslaughter and assault with a deadly weapon on behalf
of the gang, based on a robbery that occurred in 2014. Another individual, Victor Vega,
4 Arvina 13 is also referred to as Arvina Poor Side.
5.
was identified as a Lamont 13 member with ties to the Varrio Chico Lamont subset who
had been convicted of attempted murder with a gang enhancement in 2013.
As noted above, Garcia was convicted of all charges brought against him, save for
the attempted murder charges, and all enhancements alleged. Garcia was sentenced to
life without the possibility of parole, plus 25 years to life, plus 32 years and 8 months.
This appeal timely followed.
DISCUSSION
In his initial briefing, Garcia raises five arguments against various aspects of his
conviction, primarily focusing upon the gang enhancements imposed. In the first, Garcia
argues the state failed to demonstrate that two predicate offenses were committed by
members of the same gang as Garcia. Garcia principally argues that the prosecution
failed to tie the La Familia Sureño and Varrio Chico Lamont subsets to Lamont 13.
Second, Garcia argues the prosecutor failed to prove beyond a reasonable doubt that
Garcia personally caused the death of Rodolfo or the great bodily injury to Joel. Third,
Garcia argues his counsel was ineffective in failing to object to certain alleged hearsay
evidence supporting the gang expert’s opinions. Fourth, Garcia contends a conflict in the
jury instructions on motive impermissibly lowered the state’s burden of proof with
respect to the gang participation charge. Finally, Garcia argues that section 190.2,
subdivision (a)(15) is constitutionally infirm. The People concede a portion of Garcia’s
second argument, acknowledging that the section 12022.7, subdivision (a) enhancement
for causing great bodily injury to Joel cannot stand. The People generally oppose
Garcia’s remaining arguments.
In supplemental briefing submitted in conjunction with this court’s grant of
Garcia’s motion for rehearing, Garcia raises additional gang-related concerns based on
recently passed Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333),
which modified the requirements for proving gang enhancements. Garcia asserts these
changes apply retroactively and contends that several gang-related charges must be
6.
vacated, specifically, “(1) the count [9] gang participation conviction in violation of
[former] section 186.22, subdivision (a)[](2)[,] the true finding on the section 190.2,
subdivision (a)(22) gang special circumstance associated with the count [1] murder
charge, (3) the true findings on the section 182.22, subdivision (b) gang enhancements in
counts [1], [3], [5], [7], and [8] and (4) the gang-related section 12022.53, subdivision (e)
firearm enhancement in count [1].” In response, the People concede retroactivity but
argue remand is unnecessary “because the jury would have convicted appellant of the
substantive gang charge and found the gang enhancement and special circumstance to be
true even under [Assembly Bill] 333’s more stringent new requirements.” We ultimately
agree with the parties that the modifications are retroactive and with Garcia that remand
is necessary on this supplemental issue. As the People’s ability to retry Garcia turns on
whether they obtained a proper conviction under the prior law, we begin by reaffirming
our analysis of the issues raised in Garcia’s initial briefing before turning to the effect of
Assembly Bill 333.
Alleged Prunty5 Error Regarding Evidence of Predicate Crimes
Garcia challenges the evidence offered to prove the predicate crimes required for
conviction under former section 186.22, subdivisions (a) and (b), and section 190.2,
subdivision (a)(22). At the time of Garcia’s trial, these gang-related statutes each
required proof of two predicate offenses committed either by members of the same gang
as the defendant or by members of a gang affiliated with the defendant’s gang. In this
case, Garcia argues the prosecutor proved, at best, that he was a member of Lamont
Familia Sureño but that the predicate offenses were committed by members of Varrio
Chico Lamont or Lamont 13. Garcia further argues the prosecutor provided no evidence
tying these three gangs together.
5 People v. Prunty (2015) 62 Cal.4th 59 (Prunty).
7.
Standard of Review and Applicable Law
On each relevant count, the jury found Garcia committed the charged offense to
further the activities of a street gang under section 190.2, or “for the benefit of, at the
direction of, or in association with, Lamont 13, a criminal street gang and with the
specific intent to promote, further or assist in criminal conduct by gang members, within
the meaning of [former] Penal Code section 186.22(b)(1),” or as a participant in a street
gang. A criminal street gang under this statutory scheme is “any ‘ongoing organization,
association, or group of three or more persons’ that shares a common name or common
identifying symbol; that has as one of its ‘primary activities’ the commission of certain
enumerated offenses; and ‘whose members individually or collectively’ have committed
or attempted to commit certain predicate offenses.” (Prunty, supra, 62 Cal.4th at p. 67,
quoting former § 186.22, subd. (f).)
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 738–739.)
Sufficient Evidence Connects Garcia and Those Connected to the Predicate
Offenses to Lamont 13
In Prunty, the California Supreme Court held that “where the prosecution’s case
positing the existence of a single ‘criminal street gang’ for purposes of [former]
section 186.22[, subdivision ](f) turns on the existence and conduct of one or more gang
subsets, then the prosecution must show some associational or organizational connection
uniting those subsets.” (Prunty, supra, 62 Cal.4th at p. 71.) This showing demands more
than a shared ideology or philosophy, a common name, a common enemy, and/or
8.
common symbols. (Id. at pp. 70–72.) “The prosecution’s evidence must permit the jury
to infer that the ‘gang’ that the defendant sought to benefit, and the ‘gang’ that the
prosecution proves to exist, are one and the same.” (Id. at p. 75.) Thus, the prosecutor
must adduce evidence that “allow[s] the jury to reasonably infer that the ‘criminal street
gang’ the defendant sought to benefit—or which directed or associated with the
defendant—included the ‘group’ that committed the primary activities and predicate
offenses.” (Id. at p. 76.)
Garcia argues that the evidence suggesting he was part of an alleged Lamont 13
subset demonstrates the prosecution’s theory turned on the existence and conduct of one
or more gang subsets. We do not agree. Nothing about the existence of a potential gang
subset necessitates the prosecution allege that subset is the gang Garcia represents.
Indeed, in Prunty itself, despite evidence that multiple Norteño subsets existed in the
Sacramento area, the court found the prosecution properly sought to prove that Prunty
acted “to benefit the Sacramento-area Norteños” generally, and not any particular subset.
(Prunty, supra, 62 Cal.4th at p. 82.) Having made this election, the prosecution then
relied on evidence of crimes committed by various gang subsets to prove the predicate
offense requirements, without adequately demonstrating those subsets were part of the
Sacramento-area Norteño gang. (Id. at pp. 82–83.)
Similar to Prunty, here the prosecutor sought to prove Garcia was acting as part of
and to benefit the larger Lamont 13 gang, and not any particular subset. The prosecutor
elicited a direct opinion that Garcia was a Lamont 13 member. Indeed, upon a review of
the record, the primary focus of the prosecutor’s questioning and the primary opinions
and facts elicited focused upon Lamont 13 generally, and not any particular subset.
While subset evidence was elicited and discussed at times, it was not utilized as the basis
for any specific gang findings but, much more commonly, as additional background
evidence on the nature of the various activities conducted by Lamont 13 members and the
associations between them. Additional evidence in the form of tattoos associated with
9.
Lamont 13, Garcia’s statement that he was in a Lamont gang, gang art associated with
Lamont 13 generally, and direct contact with alleged Lamont 13 members further
supported the prosecutor’s position. Upon review of the record, we conclude this
evidence was sufficient for a rational trier of fact to conclude Garcia was part of
Lamont 13, exclusive of any suggestion he may have also been part of an alleged subset
called Lamont Familia Sureño.
Distinguishing this case from Prunty, the prosecution further introduced evidence
of predicate offenses committed by others classified as Lamont 13 members and
supported that assertion with evidence of some combination that the perpetrators self-
identified as Lamont 13, possessed Lamont 13 tattoos, or had been previously classified
as Lamont 13 members. While Garcia now complains that the prosecution introduced no
evidence showing the Lamont Familia Sureño subset committed legally acceptable
predicate offenses, his argument again assumes the prosecution must proceed on a theory
of related subsets where evidence of subsets exists. Similarly, while Garcia suggests that
the relevant gang was Medina’s potential subset of Lamont Familia Sureño, he fails to
counter the additional evidence showing Medina was a part of Lamont 13 generally.
Prunty itself demonstrates there is no obligation to proceed on a subset theory just
because subset evidence may exist, as the court noted the expert in that case failed to
demonstrate “that the subsets that committed the predicate offenses, or any of their
members, self-identified as members of the larger Norteño association that the defendant
sought to benefit.” (Prunty, supra, 62 Cal.4th at pp. 82–83.) The unmistakable point of
the Prunty court’s discussion is that the prosecution may proceed on the theory that the
relevant gang is Lamont 13 generally, where the evidence supports this conclusion.
Consistent with this analysis, where the evidence is sufficient to demonstrate that
members of Lamont 13 committed the predicate offenses, we see no reason why the
prosecution cannot rely on that evidence to support its theory.
10.
Here, the evidence and opinions concerning the predicate offenses showed that the
persons committing them were part of Lamont 13 when they committed their crimes, not
some particular subset. Having already demonstrated Garcia was also a member of
Lamont 13, this evidence demonstrated there were at least three individuals, associating
with the same gang, who had participated in criminal activity in support of that gang.
This evidence was sufficient to satisfy the contested portion of the statutory scheme’s
definition for a criminal street gang. As such, there is no conflict in the evidence
presented qualifying as Prunty error.
Personal Use of a Firearm and Great Bodily Injury Enhancements
Garcia’s second argument focuses on the enhancement to the murder charge
alleging Garcia personally and intentionally discharged a firearm which proximately
caused Rodolfo’s death and the similar enhancement to the assault charge related to Joel
alleging Garcia personally inflicted great bodily injury on Joel. Garcia contends there is
insufficient evidence to support these enhancements because no bullet fired from his gun
can be connected to the injuries caused. The People concede the great bodily injury
enhancement cannot stand but argue that the enhancement related to the murder charge is
properly supported.
Applicable Law
To prove the great bodily injury enhancement to the assault, the People were
required to show Garcia “personally inflict[ed] great bodily injury on” Joel. (§ 12022.7,
subd. (a).) As the People acknowledge, this enhancement carries with it a requirement of
direct causation, meaning the accused must actually commit the great bodily injury. (See
People v. Ollo (2021) 11 Cal.5th 682, 688 [noting that in assault context that personal
infliction of injury requires the defendant to administer a blow on the victim, not through
an intermediary, in a manner that is not minor, trivial, or insubstantial].) Nor can one
who aids and abets another in causing the injury be subjected to the enhancement. (Id. at
p. 692.)
11.
With respect to the discharge of a firearm enhancement to the murder charge, the
People were required to show Garcia “personally and intentionally discharge[d] a firearm
and proximately cause[d] great bodily injury … or death” to Rodolfo. (§ 12022.53,
subd. (d).) “Proximately causing and personally inflicting harm are two different things.
The Legislature is aware of the difference. When it wants to require personal infliction, it
says so.” (People v. Bland (2002) 28 Cal.4th 313, 336 (Bland).) “A person can
proximately cause a gunshot injury without personally firing the weapon that discharged
the harm-inflicting bullet.” (Id. at p. 337.)
The Evidence Supports the Jury’s Finding on Proximate Cause
As noted, the People concede that the evidence in this case does not demonstrate
that Garcia actually caused the injury to Joel. We accept this concession. Only one
bullet struck Joel and there is no record evidence tying Garcia to that bullet.
Accordingly, the conviction under section 12022.7, subdivision (a) for personally
inflicting great bodily injury on Joel cannot stand.
The People contend, however, that a different outcome exists for the personal use
of a firearm enhancement attached to Rodolfo’s death. Relying on the analysis in Bland,
the People contend that Garcia did personally discharge a firearm and that his conduct
proximately caused great bodily injury or death to Rodolfo. The People rely, in part, on
the fact that Rodolfo suffered multiple gunshot wounds, some of which did not result in
the recovery of bullet fragments, and the related fact that two gunmen were involved,
leaving some wounds unaccounted for. The People further state that, at a minimum, the
evidence shows that Garcia and another individual both fired at Rodolfo and that at least
three bullets fired by the unknown individual were lethal wounds.
Garcia contends that this line of analysis cannot succeed for two primary reasons.
First, although acknowledging that a proximate cause finding could be supported under
Bland’s logic, Garcia argues the prosecution in this case specifically abandoned such an
argument when it agreed the court did not need to instruct the jury on proximate cause
12.
and later argued that at least one of two lethal bullets that were not recovered came from
Garcia’s gun. Second, relying in part on a claim that the evidence showed the unknown
accomplice shot first, Garcia argues there is insufficient evidence the injury or death
would have occurred absent Garcia’s conduct. We are not convinced by either of
Garcia’s arguments.
Although Bland did not involve a complex factual analysis, its discussion of the
meaning of proximate cause with respect to section 12022.53 in the context of multiple
unknown shooters provides substantial insight into the resolution of this case. In Bland,
two shooters had fired at three victims, but the evidence could not tie either shooter to the
injuries sustained by the victims. (Bland, supra, 28 Cal.4th at pp. 318, 334.) The trial
court instructed the jury on the section 12022.53 enhancement, and its requirement for a
finding of proximate cause, but did not instruct on the meaning of proximate cause.
(Bland, at p. 334.) Our Supreme Court found that the trial court had a sua sponte duty to
instruct on the definition of proximate cause and determined the existing instructions
properly stated that definition, but found the failure to instruct was harmless because a
jury would necessarily find proximate cause in that case because the meaning of
proximate cause is broader, not narrower, than would normally be expected. (Id. at
pp. 334, 336, 338.)
From the court’s discussion of relevant case law, it is apparent that in the event it
can be shown multiple individuals fired gunshots at a victim and a gunshot was the
actual, direct cause of the victim’s injury, but it cannot be determined which individual
fired the harm-inflicting bullet, a defendant is criminally liable so long as his or her
conduct was a substantial factor contributing to the injury. (Bland, supra, 28 Cal.4th at
pp. 337–338; see People v. Sanchez (2001) 26 Cal.4th 834, 845–849 [discussing relevant
cases]; see also People v. Jennings (2010) 50 Cal.4th 616, 644 [“the ‘substantial factor’
rule for concurrent causes ‘was developed primarily for cases in which application of the
13.
but-for rule would allow each defendant to escape responsibility because the conduct of
one or more others would have been sufficient to produce the same result’ ”].)
Garcia’s argument in this case sidesteps the teachings in Bland by making two
assumptions. The first requires accepting that the lethal shots known to come from the
unknown gunman in this case were the focus of the prosecutor’s argument and jury’s
decision to convict on the enhancement. The second is that the only relevant harm that
occurred with respect to the enhancement arose from the three known fatal wounds tied
to the unknown shooter because that person fired first. Both fall short for the same
reasons; the record does not show such a narrow factual premise for conviction and the
law does not require such a narrow focus.
On the first assumption, the record shows that the prosecutor specifically argued
the relevant injuries were the two “through and through” shots, one of which was to
Rodolfo’s leg, that were not tied to either shooter. The prosecutor thus argued a theory
that wounds caused by an unknown but presumed shooter satisfied the statutory
requirements. This theory was then submitted to the jury with a verdict form that
required the jury find Garcia proximately caused an injury to convict.6
On the second assumption, there is no indication in the law, and Garcia has cited
to no case stating, that there can be only one relevant injury or that only a lethal wound
will suffice for conviction. As such, the prosecutor was free to argue that injuries that
could not be tied to either shooter were sufficient for conviction, and Bland confirms that
6 Notably, the trial court in this case did not instruct on the meaning of proximate cause, as
required. In his reply brief, Garcia notes that the prosecutor agreed the instruction was not
needed, suggesting this meant only a direct cause argument was being made. The failure to
instruct is not raised as an issue in this case, presumedly because Garcia’s counsel also agreed to
forego the instruction. However, we would find the error harmless for the reasons described in
Bland. (Bland, supra, 28 Cal.4th at pp. 334–338.) We further see no basis in the record to
conclude the prosecutor was not arguing proximate causation, as his argument relies on
convicting one of causing wounds that were not tied to any particular weapon or shooter and the
verdict form on the enhancement retained the requirement of proving proximate cause to convict.
The prosecutor’s inference that Garcia was the shooter does not compel a different result.
14.
the jury could find proximate cause, as called for in the verdict, in such situations.
Further, as in Bland, it does not matter who fired first. The jury would not likely convict
Garcia of proximately causing injuries known to be caused by the unknown accomplice.
(Bland, supra, 28 Cal.4th at p. 338.) Accordingly, we find the evidence sufficient to
support the 12022.53, subdivision (d) enhancement to the murder charge.
Ineffective Assistance of Counsel
Third, Garcia raises an ineffective assistance of counsel claim based on counsel’s
failure to object to allegedly inadmissible hearsay conveyed by the gang expert to prove
Garcia committed his crimes for the benefit of his gang. Garcia alleges that the expert
improperly relied on community conversations to support his claim that members of the
community were less likely to cooperate with police based on crimes committed by
Lamont 13 in their neighborhoods. Garcia contends such evidence should have been
excluded based on a pretrial in limine ruling that excluded “any case specific out-of-court
statements that the gang expert would relate to the jury for the truth as inadmissible
hearsay,” and thus that any failure to object constitutes ineffective assistance of counsel.
Applicable Law
To establish ineffective assistance of counsel, Garcia must show that counsel’s
performance “fell below an objective standard of reasonableness,” and that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
688, 694.) “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” (Id. at p. 694.)
“ ‘Tactical errors are generally not deemed reversible; and counsel’s
decisionmaking must be evaluated in the context of the available facts. [Citation.] To
the extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment “unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
15.
explanation .…” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623–624.) “An attorney may
choose not to object for many reasons, and the failure to object rarely establishes
ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540; accord, People v.
Avena (1996) 13 Cal.4th 394, 421; People v. Adcox (1988) 47 Cal.3d 207, 261.)
“The Sixth Amendment to the federal Constitution guarantees a defendant’s right
to confront adverse witnesses. [Citation.] In addition, the prosecution may not rely on
‘testimonial’ out-of-court statements unless the witness is unavailable to testify and the
defendant had a prior opportunity for cross-examination.” (People v. Harris (2013)
57 Cal.4th 804, 839–840; see Crawford v. Washington (2004) 541 U.S. 36, 59.) Under
federal confrontation clause jurisprudence, as interpreted by our California Supreme
Court, at least two factors must be considered to determine whether a statement is
testimonial. “First, to be testimonial the statement must be made with some degree of
formality or solemnity. Second, the statement is testimonial only if its primary purpose
pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012) 55 Cal.4th
608, 619.)
In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our Supreme Court
considered “the degree to which the Crawford rule limits an expert witness from relating
case-specific hearsay content in explaining the basis for his opinion.” (Id. at p. 670.)
Sanchez reasserted the historical distinction between case-specific hearsay and the
general hearsay relied upon by experts to detail general knowledge in the expert’s field of
expertise. (Id. at pp. 675–679.) In doing so, it clarified that “[i]f an expert testifies to
case-specific out-of-court statements to explain the bases for his opinion, those
statements are necessarily considered by the jury for their truth, thus rendering them
hearsay.” (Id. at p. 684.)
Having established this baseline, the court then considered whether certain types
of hearsay evidence in gang cases are testimonial in nature and thus within the purview of
Crawford’s constitutional restrictions on admissibility. (Sanchez, supra, 63 Cal.4th at
16.
p. 687.) The court detailed its understanding of the present evolution of what constitutes
testimonial hearsay, explaining as a precursor, “[t]estimonial statements are those made
primarily to memorialize facts relating to past criminal activity, which could be used like
trial testimony. Nontestimonial statements are those whose primary purpose is to deal
with an ongoing emergency or some other purpose unrelated to preserving facts for later
use at trial.” (Id. at p. 689, fn. omitted.) It then recounted various permutations of the
primary purpose test, before applying the overarching doctrine to certain evidence relied
upon in reaching the gang conclusions in that matter. (Id. at pp. 689–694.) In its
application, the court found that police reports are generally testimonial in nature, as are
field identification cards written during the course of an active investigation. (Id. at
pp. 694–697.) The court concluded the admission of such testimonial hearsay violates
the confrontation clause. (Id. at pp. 695–698.)
“ ‘ “ ‘Confrontation clause violations are subject to federal harmless-error analysis
under Chapman v. California (1967) 386 U.S. 18, 24.’ [Citation.] We ask whether it is
clear beyond a reasonable doubt that a rational jury would have reached the same verdict
absent the error.” ’ ” (People v. Capistrano (2014) 59 Cal.4th 830, 873.) “ ‘To say that
an error did not contribute to the ensuing verdict is … to find that error unimportant in
relation to everything else the jury considered on the issue in question, as revealed in the
record.’ [Citation.] Thus, the focus is what the jury actually decided and whether the
error might have tainted its decision.” (People v. Neal (2003) 31 Cal.4th 63, 86.)
Counsel’s Conduct Was Not Deficient
The People contend, and this court agrees, that the statements made by the gang
expert did not rise to the level of case-specific hearsay, but rather consisted of non-case-
specific hearsay properly recounted to the jury to disclose part of the basis for the
expert’s opinion. The allegedly case-specific hearsay in this instance arose from a series
of questions asked to the gang expert. The expert was first asked how he learned about
and worked to understand Lamont 13. He responded he not only reads police reports and
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contact cards but speaks “with other gang experts … other deputies that make frequent
contact with gang members. [He] would read police reports, talk to gang members,
members of the community, that type of thing.” Later, the expert was asked whether he
had spoken to members of the public about Lamont 13. After responding yes, the
following exchange occurred:
“Q. Okay. And have you spoken to them about the criminal
activity of Lamont 13?
“A. Yes.
“Q. Have you done so when they are potential witnesses or even
victims?
“A. Yes.
“Q. Or even in passing where they are not the subject of any type
of investigation or questioning or that sort of thing?
“A. Yes.
“Q. Like a consensual contact?
“A. Yes. [¶] … [¶]
“Q. Based on your conversations with the general public, are they
aware of ongoing criminal conduct of the Lamont 13 criminal street gang?
“A. Yes.”
Although conceding the prosecutor did not elicit any specific statements from
members of the public and that the relevant evidence did not go to a direct element of the
enhancement, Garcia relies on Sanchez and People v. Williams (2016) 1 Cal.5th 1166, to
contend that the generalized statements about the community’s awareness of Lamont 13’s
criminal conduct constituted case-specific facts that had to be independently proven. We
do not agree. Ultimately, the expert’s opinion was that the violent crimes committed by
the gang caused fear in the community, thus lessening the community’s willingness to
assist police in solving future crimes. While community knowledge of the gang’s
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activities is relevant to such an opinion, it is not necessarily a case specific fact in the
same way as a statement that community members heard of the current crime or failed to
cooperate with police because of the violent nature of the gang in this or any specific
instance would be.
Rather, the evidence elicited is more properly seen as background information
based on first-hand experiences in the community and falls well within the generalized
support permitted for the expert’s opinion that violent gang behavior benefits the gang by
spreading fear within their territory. As Sanchez explains, such general background
evidence may be noted for the jury to explain the basis of an expert’s opinion. (Sanchez,
supra, 63 Cal.4th at p. 675 [“In addition to matters within their own personal knowledge,
experts may relate information acquired through their training and experience, even
though that information may have been derived from conversations with others, lectures,
study of learned treatises, etc.”].) The community discussions here show no indication
they were obtained to document past criminal activity and, indeed, at least some of the
community knowledge was shared outside of a criminal context and thus was general
knowledge acquired through the expert’s experience. We likewise see no comparison in
the facts to People v. Williams, supra, 1 Cal.5th 1166, where the properly excluded
evidence was purported statements detailing the defendant’s mother’s alcoholism, offered
to support an opinion that the mother was an alcoholic and thus that the defendant was
more prone to alcohol abuse. Notably, even there the expert was still permitted to offer
an expert opinion based on his diagnosis and general knowledge of a family history of
alcoholism. (Id. at pp. 1199–1201.) We thus see no error in failing to object to the
statements made by the expert in this situation.
CALCRIM No. 370
Fourth, Garcia claims the trial court erred by instructing the jury with CALCRIM
No. 370, which informed the jury that the People were not required to prove Garcia had a
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motive to commit any of the charged crimes. He contends this was error because motive
is an element of the gang enhancement.
Garcia acknowledges that this court considered and rejected this contention in
People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139–1140 (Fuentes). He argues this
decision should be reconsidered. We do not agree.
Motive and intent are not synonymous. (People v. Bordelon (2008)
162 Cal.App.4th 1311, 1322.) “Motive describes the reason a person chooses to commit
a crime. The reason, however, is different from a required mental state such as intent or
malice.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504.)
As we stated in Fuentes, a defendant’s intent to further criminal gang activity is
not a motive any more than any other specific intent; just as intent to kill is not a motive.
(Fuentes, supra, 171 Cal.App.4th at p. 1139.) While Garcia challenges the giving of
CALCRIM No. 370 only as it applies to the gang enhancement, our decision in Fuentes
applies to the gang offense as well. (Fuentes, at p. 1139.)
CALCRIM No. 370 instructed the jury that the People were not required to prove
any motive to commit the charged crimes. Additionally, CALCRIM No. 1401 instructed
on the former section 186.22, subdivision (b)(1) gang enhancement and provided that the
People must prove Garcia intended to further gang activity. These instructions correctly
informed the jury that the People must prove Garcia “intended to further gang activity but
need not show what motivated” him to do so. (Fuentes, supra, 171 Cal.App.4th at
pp. 1139–1140.)
Section 190.2
Finally, with respect to Garcia’s initial briefing, Garcia challenges the lying-in-
wait special circumstance conviction he suffered under section 190.2. Garcia contends
that section 190.2, subdivision (a)(15) is unconstitutionally vague and overbroad, thus
constituting cruel and unusual punishment under the Eighth Amendment because it fails
to meaningfully distinguish lying-in-wait murder from other intentional killings. Garcia
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recognizes that this argument was rejected by the California Supreme Court in People v.
Morales (1989) 48 Cal.3d 527, 557. He argues, however, that Morales has been
“severely criticized and cannot withstand careful examination,” and thus should not be
followed.
We do not agree. None of Garcia’s citations show that Morales’s determination
that the historical lying-in-wait special circumstance is constitutional has been discredited
or overturned. Further, our Supreme Court again reviewed the enhancement in 2016,
following amendments further tying the special circumstance to the underlying
requirements of lying-in-wait murder. The court confirmed the enhancement was
constitutional, explaining: “That a crime historically has been considered more
reprehensible than other murders provides ‘a rational basis for distinguishing those
murderers who deserve to be considered for the death penalty from those who do not.’ ”
(People v. Johnson (2016) 62 Cal.4th 600, 637.) Garcia’s argument is thus foreclosed by
binding precedent.
Assembly Bill 333
Garcia argues in supplemental briefing that Assembly Bill 333 should apply
retroactively to his nonfinal case and that the modifications made by Assembly Bill 333
to the requirements for proving gang enhancements were not met by the prosecution in
this case. Garcia additionally argues that even if the elements were arguably met, the
change in the law is substantial enough that retrial is necessary so that counsel can
prepare and defend against the new elements, which were not relevant at the time of his
initial trial. The People agree that Assembly Bill 333 is retroactive. However, the People
argue retrial is not necessary because the evidence adduced at trial met the new
requirements of Assembly Bill 333.
We note at the outset our agreement with the parties’ undisputed contention that
Assembly Bill 333 is retroactive to nonfinal cases. Several courts have considered this
issue and found retroactivity applicable. (See People v. Lopez (2021) 73 Cal.App.5th
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327, 344 (Lopez) [“As Assembly Bill 333 increases the threshold for conviction of the
section 186.22 offense and the imposition of the enhancement, we agree with Lopez and
the People that Lopez is entitled to the benefit of this change in the law.”].) We thus turn
to whether a retrial is required given the new elements added to the law.
Applicable Law
Effective January 1, 2022, Assembly Bill 333 “amend[ed] section 186.22 to
require proof of additional elements to establish a gang enhancement.” (Lopez, supra,
73 Cal.App.5th at p. 343.) In part, Assembly Bill 333 narrowed the definition of
“ ‘ “criminal street gang” ’ ” to “ ‘an[y] ongoing, organized association or group of three
or more persons, whether formal or informal, having as one of its primary activities the
commission of one or more [enumerated criminal acts], having a common name or
common identifying sign or symbol, and whose members collectively engage in, or have
engaged in, a pattern of criminal gang activity.’ ” (Lopez, at p. 344, first bracketed
insertion added, quoting § 186.22, subd. (f), as amended by Stats. 2021, ch. 699, § 3.)
In addition, Assembly Bill 333 changed the definition for a “pattern of criminal
gang activity.” (See § 186.22, subd. (a).) At the time of Garcia’s trial, this term was
defined as “the commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction of two or more of the
following offenses, provided at least one of these offenses occurred after the effective
date of this chapter and the last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions, or by two or more
persons.” (Former § 186.22, subd. (e).)
Following the enactment of Assembly Bill 333, the definition has been amended
as follows: “ ‘pattern of criminal gang activity’ means the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or
conviction of [] two or more of the following offenses [§ 186.22, subds. (A)–(Z)],
provided at least one of these offenses occurred after the effective date of this chapter,
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and the last of those offenses occurred within three years of the prior offense and within
three years of the date the current offense is alleged to have been committed, the offenses
were committed on separate occasions or by two or more members [of the gang], the
offenses commonly benefited a criminal street gang, and the common benefit of the
offense is more than reputational .…” (§ 186.22, subd. (e)(1).)
Thus, to prove the “pattern of criminal gang activity,” the prosecution must now
adduce evidence showing: (1) the last predicate offense occurred within three years of
the currently charged offense; (2) the predicate offenses were committed by members of
the gang who acted collectively; (3) the offenses commonly benefit a criminal street
gang; and (4) that benefit is more than reputational. Subdivision (g) of section 186.22
provides the following examples of a common benefit that is more than reputational:
“financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or
intimidation or silencing of a potential current or previous witness or informant.” By
contrast, evidence of a reputational benefit would include an expert’s opinion that the
commission of a particular violent crime would elevate a gang member’s reputation,
which inures to the gang’s benefit by instilling fear into the community and rival gang
members. (See, e.g., People v. Albillar (2010) 51 Cal.4th 47, 63.)
Discussion
The People readily concede that at least two of the four predicate offenses
introduced in this case “arguably do not meet the new requirements.” However, the
People contend that circumstantial evidence in the record allows this court to conclude
that no reversible error arose because the remaining two predicate offenses would meet
the new statutory requirements. These two predicate offenses were (1) an assault by
three Lamont 13 members on two individuals whom the prosecution showed were
“Hispanic males” who were “from Arvin, but they were in Lamont at the time of the
assault” and (2) a cell phone robbery and stabbing committed by four Lamont 13
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members. No additional information appears to have been disclosed about this later
incident.
The People argue that these incidents meet the new requirements of Assembly
Bill 333 based, in part, on the facts that the first offense occurred to protect gang turf
“from perceived rivals” and the second occurred “for financial gain.” We do not agree.
First, reviewing the record, there is no witness testimony regarding the motivations for
these crimes specifically. At best the record shows that the People’s gang expert was
asked about why gang members may commit murder. In response, the expert stated, “I
know gang members commit violent crimes like assault with a deadly weapon, murders,
shootings to enhance the gang member’s individual reputation within the gang, and the
gang’s overall reputation within the community.” Thus, other than the facts that the
victims in the first offense were Hispanic and from Arvin—with no indication they were
Arvin gang members—and in the second offense a cell phone was stolen, there is no
indication in the record the offenses took place for any reason other than enhancing the
gang’s reputation. We find no basis to conclude these thin factual connections to asserted
bases for the crimes are sufficient to show any error arising because the core elements of
the offense changed after the trial occurred was harmless. The People simply had no
reason to explore the motivations behind these offenses at trial and thus created a record
that, as discussed above, satisfied the then current standards but failed to satisfy the new
standards.
“We therefore conclude that the gang-related enhancement findings must be
vacated and the matter remanded to give the People the opportunity to prove the
applicability of the enhancements under the amendments to section 186.22.” (Lopez,
supra, 73 Cal.App.5th at p. 346.) Here, the imposition of the former section 186.22,
subdivision (b)(1) and section 12022.53 enhancements were based on gang-related
enhancements findings. (See § 12022.53, subd. (e)(1)(A).) Similarly, the section 186.22,
subdivision (a) gang participation conviction and the section 190.2, subdivision (a)(22)
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enhancement were also based on gang-enhancement findings. We thus vacate these
findings, noting the People may elect to retry them on remand.
DISPOSITION
The judgment is reversed with respect to the enhancements and convictions under
former section 186.22, subdivisions (a) and (b)(1) and sections 190.2, subdivision (a)(22),
12022.53, and 12022.7, subdivision (a). The judgment is affirmed in all other respects.
The matter is remanded for further proceedings consistent with this opinion.
HILL, P. J.
WE CONCUR:
POOCHIGIAN, J.
DETJEN, J.
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